ASHARFI DEVI (D) THR. LRS.versusSTATE OF U.P. & ORS.

                         [2019] 1 S.C.R. 855                              855


                  ASHARFI DEVI (D) THR. LRS.                              A
                                  v.
                      STATE OF U.P. & ORS.
                   (Civil Appeal No. 5217 of 2010)
                                                                          B
                        FEBRUARY 01, 2019
               [ABHAY MANOHAR SAPRE AND
                 DINESH MAHESHWARI, JJ.]
       Constitution of India – Art. 142 – Powers under – Invocation
of – Ceiling proceedings challenged in a writ petition – Dismissed        C
by the High Court – Review application also dismissed – Appeal
only against the review order, wherein appellants seeking to
challenge the legality of main order – Held: The instant appeal
does not arise out of the main order passed in the writ petition but
arises out of review order only and, thus, the legality and correctness
of the main order cannot be examined in this appeal like an appellate     D
court – There was no legal impediment on the appellants’ right to
file the SLP in Supreme Court as soon as the main order was passed
– When the present SLP was filed in the year 2010 against the review
order, the original appellant again did not challenge the main order
– Thus, no ground to invoke extraordinary powers u/Art. 142 and           E
permit the appellants to question the legality of main order in this
appeal – Urban Land (Ceiling and Regulation) Act, 1976.
       Code of Civil Procedure, 1908 – Or. XLVII, r. 1 – Review order
– Legality of – Held: Every error whether factual or legal cannot
be made subject matter of review u/Or. XLVII, r. 1 though it can be       F
made subject matter of appeal arising out of such order – In order
to attract the provisions of Or. XLVII, r. 1, the error/mistake must be
apparent on the face of the record of the case – On facts, review
order was passed in conformity with the requirements of Or. XLVII,
r. 1 and, thus, the High Court rightly concluded that the main order
impugned in the review application did not contain any factual or/        G
and legal error within the meaning of Or. XLVII, so as to entitle the
review Court to recall the same in its review jurisdiction – Once the
finding was recorded by the High Court in the Writ petition that the
writ petitioner failed to prove her case, such finding could not have
                                                                          H
                                 855
856            SUPREME COURT REPORTS                      [2019] 1 S.C.R.


A     been examined de novo in review jurisdiction by the same Court
      like an appellate court on the facts and evidence – Reasoning and
      conclusion arrived at by the High Court (Review Court) in the
      impugned order is concurred with.
            Dismissing the appeal, the Court
B           HELD: 1.1 The original appellant (writ petitioner) never
      challenged the legality and correctness of the main order passed
      in the writ petition but confined her challenge only to the order
      passed in the review application. Though counsel for the appellant
      contended that reading of the list of dates in this appeal shows
C     that the original appellant has challenged the main order also
      along with the review order, but it is not found so. The original
      appellant not having challenged the legality of the main order in
      a separate SLP or in this appeal, this Court is not called upon to
      examine the legality and correctness of the main order dated
      14.03.2008 in the present appeal. [Paras 9, 10 and 11][859-C-E]
D
            1.2 The original appellant did not assign any reason as to
      what prevented her in the last almost 11 years in not filing the
      SLP against the main order. There was no legal impediment on
      the appellants’ right to file the SLP in this Court as soon as the
      main order was passed and when the present SLP was filed in the
E     year 2010 against the review order, the original appellant again
      did not challenge the main order. In view thereof, there is no
      good ground to invoke extraordinary powers under Article 142
      of the Constitution and permit the appellants (legal
      representatives of original appellant) to question the legality of
F     main order in this appeal. [Paras 13-15][859-F-H; 860-A-B]
             1.3 While examining the legality of the review order, the
      legality of main order cannot be examined on its merits because,
      this appeal does not arise out of the main order. Therefore, inquiry
      is to be confined with a view to find out whether the review order
G     is legally sustainable or not. [Para 18][860-C-D]
             1.4 It is a settled law that every error whether factual or
      legal cannot be made subject matter of review under Order XLVII
      Rule 1 of the Code though it can be made subject matter of appeal
      arising out of such order. In other words, in order to attract the
      provisions of Order XLVII Rule 1 of the Code, the error/mistake
H
        ASHARFI DEVI (D) THR. LRS. v. STATE OF U.P.                      857


must be apparent on the face of the record of the case. [Para            A
21][860-F-G]
       1.5 On perusal of the main order, it is found that the High
Court dismissed the writ petition holding that the writ petitioner
(original appellant) failed to prove her possession over the land
in question on the date of repeal. It was held that the State had        B
taken possession of the land in the year 1982 as per the panchnama
prepared by the State. In review, the High Court held that while
recording the said finding in the main order, no apparent error,
whether on facts or law within the meaning of Order XLVII Rule
1 of the Code, was committed attracting the rigor of Order XLVII
Rule 1 of the Code. [Paras 19, 20][860-D-F]                              C

      1.6 This appeal does not arise out of the main order but
arises out of review order only and, therefore, the legality and
correctness of the main order cannot be examined in this appeal
like an Appellate Court. The matter is examined only with a view
to find out as to whether the High Court was right in dismissing         D
the review application and thereby justified in upholding the main
order holding that it did not contain any error/mistake apparent
on the face of the record. In other words, the issue was examined
only with a view to find out as to whether the review order, which
is subject matter of this appeal, was passed in conformity with          E
the requirements of Order XLVII Rule 1 of the Code or not.
Having examined, the review order was passed in conformity
with the requirements of Order XLVII Rule 1 of the Code and,
therefore, the High Court rightly concluded that the main order
impugned in the review application did not contain any factual
or/and legal error(s) within the meaning of Order XLVII of the           F
Code so as to entitle the review Court to recall the same in its
review jurisdiction. And lastly, once the finding was recorded by
the High Court in the writ petition that the writ petitioner (original
appellant) failed to prove her actual possession on the land in
question on the date of repeal, such finding could not have been         G
examined de novo in review jurisdiction by the same Court like
an Appellate Court on the facts and evidence. The reasoning and
the conclusion arrived at by the High Court (Review Court) in
the impugned order is concurred with. [Paras 23-28][861-A-F]

                                                                         H
858             SUPREME COURT REPORTS                              [2019] 1 S.C.R.


A           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5217
      of 2010.
            From the Judgment and Order dated 16.12.2008 of the High Court
      of Judicature at Allahabad U.P. in Civil Misc. Review Application No.
      81507 of 2008 in Civil Misc. Writ Petition No. 10557 of 2002.
B            Jayant Bhushan, Sr. Adv., Bharat Bhushan, Tushar Bhushan, Advs.
      for the appellants.
            Dr. M.P. Raju, John Thomas, P. George Giri, Ms. Jasmin Kurian,
      T.N. Singh, Rajeev Kr. Dubey, Kamlendra Mishra, Bhakti Vardhan Singh,
      Sanjay Kumar Visen, Navin Gupta, Ms. Sasmita Tripathy, Ms. Ritu
C     Rastogi, Advs. for the respondents.
             The Judgment of the Court was delivered by
             ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
      against the final judgment and order dated 16.12.2008 passed by the
      High Court of Judicature at Allahabad in Civil Misc. Review Application
D     No.81507 of 2008 in Civil Misc. Writ Petition No.10557 of 2002 whereby
      the High Court dismissed the Civil Misc. Review Application filed by the
      original appellant herein.
             2. In order to appreciate the short controversy involved in this
      appeal, few facts need mention infra.
E            3. The appellants herein are the legal representatives of the original
      appellant, who was the writ petitioner and the review petitioner whereas
      the respondents herein were the respondents in the writ petition and the
      review application.
             4. The original appellant was the owner of certain lands. These
      lands were subjected to ceiling proceedings under the Urban Land (Ceiling
F
      and Regulation) Act, 1976. The ceiling proceedings eventually resulted
      in declaring some lands in excess of ceiling limits as surplus. The State
      claims to have taken possession of the surplus land way back in the year
      1982. The Ceiling Act was repealed for the State of UP on 22.03.1999.
             5. In the year 2002, the original appellant filed a writ petition against
G     the respondents-State of UP and its authorities in the Allahabad High
      Court claiming therein that since the original appellant continued to remain
      in possession of the surplus land even after the Repeal Act came into
      force, all the ceiling proceedings against her in relation to the lands in
      question stood lapsed in terms of Repeal Act.
H
         ASHARFI DEVI (D) THR. LRS. v. STATE OF U.P.                            859
              [ABHAY MANOHAR SAPRE, J.]

       6. This writ petition was dismissed by order dated 14.03.2008.           A
The original appellant (writ petitioner) felt aggrieved by the dismissal of
her writ petition and filed Review Application No.81507/2008 in the High
Court. By impugned order dated 16.12.2008, the High Court dismissed
the review application.
       7. The original appellant felt aggrieved and filed the present appeal    B
by way of special leave against the review order dated 16.12.2008 in
this Court.
      8. Heard Mr. Jayant Bhushan, learned senior counsel for the
appellants and Dr. M.P. Raju, learned counsel for the respondents.
       9. It is clear from the record that the original appellant (writ         C
petitioner) never challenged the legality and correctness of the main
order dated 14.03.2008 passed in the writ petition (10557/2002) but
confined her challenge only to the order dated 16.12.2008 passed in the
review application.
      10. Though, learned counsel for the appellant contended that              D
reading of the list of dates in this appeal shows that the original appellant
has challenged the main order dated 14.03.2008 also along with the review
order dated 16.12.2008, but we do not find it to be so.
       11. In our opinion, the original appellant not having challenged the
legality of the main order dated 14.03.2008 in a separate SLP or in this        E
appeal, this Court is not called upon to examine the legality and
correctness of the main order dated 14.03.2008 in the present appeal.
       12. Mr. Jayant Bhushan, learned senior counsel for the appellants,
however, argued that this Court should invoke the powers under Article
142 of the Constitution and permit the appellants to challenge the main         F
order. We find no merit in this submission for three reasons.
      13. First, the original appellant did not assign any reason as to
what prevented her in the last almost 11 years in not filing the SLP
against the main order;
        14. Second, there was no legal impediment on the appellants’ right      G
to file the SLP in this Court as soon as the main order dated 14.03.2008
was passed and lastly, when the present SLP was filed in the year 2010
against the review order, the original appellant again did not challenge
the main order dated 14.03.2008.
                                                                                H
860             SUPREME COURT REPORTS                            [2019] 1 S.C.R.


A            15. In the light of these three reasons, we find no good ground to
      invoke extraordinary powers under Article 142 of the Constitution and
      permit the appellants(legal representatives of original appellant) to question
      the legality of main order dated 14.03.2008 in this appeal.
             16. Now coming to the merits of the case, we have to only examine
B     the question as to whether the High Court was right in dismissing the
      review application filed by the original appellant holding that there was
      no error apparent on the face of the main order dated 14.03.2008 within
      the meaning of Order 47 Rule 1 of the Code of Civil Procedure, 1908
      (hereinafter referred to as “the Code”).
             17. Having heard the learned counsel for the parties and on perusal
C
      of the record of the case, we find no merit in this appeal.
             18. While examining the legality of the review order, we cannot
      examine the legality of main order dated 14.03.2008 on its merits because,
      as mentioned above, this appeal does not arise out of the main order.
      Therefore, we have to confine our inquiry with a view to find out whether
D     the review order is legally sustainable or not.
             19. On perusal of the main order dated 14.03.2008, we find that
      the High Court dismissed the writ petition holding that the writ petitioner
      (original appellant herein) failed to prove her possession over the land in
      question on the date of repeal. It was held that the State had taken
E     possession of the land in the year 1982 as per the panchnama prepared
      by the State.
             20. In review, the High Court held that while recording the
      aforementioned finding in the main order, no apparent error, whether on
      facts or law within the meaning of Order 47 Rule 1 of the Code, was
F     committed attracting the rigor of Order 47 Rule 1 of the Code.
             21. It is a settled law that every error whether factual or legal
      cannot be made subject matter of review under Order 47 Rule 1 of the
      Code though it can be made subject matter of appeal arising out of such
      order. In other words, in order to attract the provisions of Order 47 Rule
      1 of the Code, the error/mistake must be apparent on the face of the
G
      record of the case.
             22. Learned counsel for the appellants then argued the appeal as
      if this appeal arises out of the main order dated 14.03.2008. He
      extensively referred to the pleadings and several documents as if we
      are called upon to examine the legality of the main order itself.
H
             ASHARFI DEVI (D) THR. LRS. v. STATE OF U.P.                           861
                  [ABHAY MANOHAR SAPRE, J.]

      23. We find no merit in any of his submissions for more than one             A
reason. First, as mentioned above, this appeal does not arise out of the
main order but arises out of review order only and, therefore, we cannot
examine the legality and correctness of the main order in this appeal like
an Appellate Court.
       24. Second, we examined the matter only with a view to find out             B
as to whether the High Court was right in dismissing the review application
and thereby justified in upholding the main order dated 14.03.2008 holding
that it did not contain any error/mistake apparent on the face of the
record.
      25. In other words, we examined the issue only with a view to                C
find out as to whether the review order, which is subject matter of this
appeal, was passed in conformity with the requirements of Order 47
Rule 1 of the Code or not.
       26. Third, having examined, we are of the view that the review
order was passed in conformity with the requirements of Order 47 Rule              D
1 of the Code and, therefore, the High Court rightly concluded that the
main order impugned in the review application did not contain any factual
or/and legal error(s) within the meaning of Order 47 of the Code so as to
entitle the review Court to recall the same in its review jurisdiction.
       27. And lastly, once the finding was recorded by the High Court in          E
the writ petition that the writ petitioner (original appellant) failed to prove
her actual possession on the land in question on the date of repeal, such
finding could not have been examined de novo in review jurisdiction by
the same Court like an Appellate Court on the facts and evidence.
        28. In view of the foregoing discussion, we concur with the                F
reasoning and the conclusion arrived at by the High Court (Review Court)
in the impugned order and find no merit in this appeal.
        29. The appeal thus fails and is accordingly dismissed.

                                                                                   G
Nidhi Jain                                                     Appeal dismissed.




                                                                                   H